I have a new essay up at SSRN, “Accountability” as “Legitimacy”: Global Governance, Global Civil Society and the United Nations. It appears in the new issue of the Brooklyn Journal of International Law, a special symposium on accountability and international NGOs, at which I was privileged to present last fall. The conference was excellent and so is the full published symposium. Below the fold, I put a bit of the introduction, a part that introduces three distinct notions of accountability in the international NGO setting.
First, NGOs are institutions that offer greater or lesser degrees of ac- countability in an “internal” sense—an internal “governance” sense. In other words, the accountability that would be relevant to any organization in its fiduciary governance, but particularly fiduciary institutions of a nonprofit nature that also owe obligations of public trust. These obligations of accountability include, to start with, mechanisms to account for the stewardship of funds, fidelity to the mission for which those funds were conveyed, and the range of often quite technical accountability issues that go along with the classic fiduciary duties of care and loyalty, as well as (in the case of a charitable organization) some duty of transparency.
These “internal” forms of accountability ensure stewardship of re- sources toward a mission, and they can be satisfied—indeed, really can only be satisfied—through expert and technical ministration by auditors, accountants, lawyers, and others. There is a further important question, as papers in the Brooklyn Symposium note in detail, as to whom those “internal accountability” monitors should themselves be accountable. For example, in the transborder NGO arena, to which country’s regulators must monitors answer? Those giving aid assistance, or those receiving it, or both? Since presumably no one favors embezzlement of NGO funds, and more broadly everyone favors accountability in the sense of stewardship toward a declared mission, this form of accountability is largely instrumental and not contested, even if the role of the government regulator raises important questions of political governance in a world in which NGOs cross borders.
A second form of accountability, however, might be thought of as “external” accountability. It is explicitly about the relationship of NGOs to the globalized world in a political sense—the accountability of their role as political actors, both to whom they ought to be accountable, and who ought to be accountable to them—in each instance an open and contested question. This is the question of whether NGOs claim, and by some actor are conveyed, a role in political governance of a kind that hithertofor might have thought to attach to governments and their governed peoples. If, as has often been claimed during the last twenty or so years, NGOs act as “stand in” representatives of the “peoples” of the world before international organizations, in what sense and to whom are they accountable, if they now stand alongside or supplant states in this role? And in what sense are these international organizations to account to NGOs, why, on what basis, and what principle of justification, if at all?
This Essay addresses itself to this second, “external,” sense of accountability. As a consequence, it does not focus very much on the first sense of accountability, in large part because it is in agreement that the first sense of accountability is crucial and indisputable as a proposition, even if there is much useful discussion to be had as to forms. Mechanisms to enforce the basic rules of internal fiduciary accountability are essential for any organization, for profit, non-profit, or governmental alike. Whereas the most contested issues for cross-border NGOs and accountability at this moment arise from this second sense, the political, external sense of accountability, without in any way slighting the enormous importance of the often highly technical work around the standards, rules, regulations, laws, and best practices for internal accountability.
Yet at least in passing, note that there is a third question of accountability that has not received sufficient attention. It particularly attaches to those NGOs taking human rights and such “values” issues as their subject matter—those NGOs devoted to questions of international morality, whether framed as human rights law, politics, or some other way. This third question of accountability asks whether (and if so under what circumstances) an NGO actor making pronouncements and offering judgments of law and morality (judgments, for example, on the law of war applied to terrorism situations, or calls for forcible humanitarian intervention by states or international governmental organizations) should be called to “account” for its judgments, given that it has no “skin in the game.” One way in which human rights NGOs, in particular—though it can be seen to extend to other issues and NGOs as well—might be de- scribed as “unaccountable” is the relative ease with which entities with no direct stake may call for others to act. It is natural, irresistible even, to ask to whom “accountability” is owed by the NGO that is responsible for the safety of no population, no territory, has no governance responsibilities and yet freely calls for many sweeping things, including the expenditure of blood and treasure. God? Kant? The Categorical Imperative?